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Lietz v. Wilkie

United States District Court, D. Idaho

June 19, 2019

Paul Lietz, Plaintiff,
v.
Robert Wilkie, Lawrence Carroll, Michael J. Murphy, David A. Wood, Andrew Wilpher, Keri Barbero, and John/Jane Does I through X, whose true identities are presently unknown, Defendants.

          MEMORANDUM AND ORDER RE: MOTION TO DISMISS

          Honorable Edward J. Lodge U.S. District Judge

         Pending before the Court is Defendants Robert Wilkie, Michael J. Murphy, David A. Wood, Andrew Wilpher, and Keri Barbero's Motion to Dismiss. (Dkt. 15.) The motion is now ripe. Having fully reviewed the docket herein, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decision-making process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without oral argument.

         BACKGROUND

         On May 21, 2015, the Boise Veteran Affairs (“VA”) Medical Center issued an Order of Behavioral Restriction (“OBR”) for Lietz on the grounds that he demonstrated disruptive and threatening behavior towards the Boise VA Medical Center staff during a May 5, 2015 phone call to the center. The OBR required Lietz to check in with the VA police when he arrived at the Boise VA Medical Center and for Lietz to have a police escort to his medical appointments on the center's premises.

         On June 15, 2015, Lietz filed an appeal of his May 21, 2015 OBR. On August 12, 2015, Lietz was reportedly informed by a Boise VA Medical Center employee that his appeal was not forwarded to the VISN-20 Network Director. On July 7, 2016, the Boise VA Medical Center revoked the May 21, 2015 OBR.

         On June 6, 2017, Lietz was issued a second OBR, allegedly because the Boise VA Medical Center was concerned about Lietz's potential for violence towards VA employees due to Lietz's aggressive behavior and abusive language in his prior interactions with VA staff. The second OBR imposed the same conditions as the first one.

         On June 26, 2017, Lietz filed an appeal of his second OBR and mailed a copy of his appeal to the VISN-20 Network Director. On July 20, 2017, the agency issued its initial decision. On August 31, 2017, Lietz appealed the decision. On November 2, 2017, the Office of General Counsel issued a final agency decision, denying Lietz's appeal. On May 8, 2018, Lietz filed an administrative claim regarding the second OBR, which was denied on June 19, 2018. The June 6, 2017 OBR is still in effect.

         On December 13, 2018, Lietz filed the present suit against Defendants Robert Wilkie, Lawrence Carroll, Michael J. Murphy, David A. Wood, Andrew Wilpher, and Keri Barbero. The Complaint asserts eight Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), causes of action: (1) Violation of 1st Amendment Rights to Free Speech, and Expression; (2) Violation of 1st Amendment Rights to Petition the Government for a Redress of Grievance; (3) Retaliation in Violation of the 1st Amendment; (4) Violation of 5th Amendment Rights; (5) Violation of 9th Amendment Rights; (6) Violation of 38 C.F.R. § 17.33(g); (7) Violation of C.F.R. § 17.33(i); and (8) Violation of 38 C.F.R. § 17.107.

         On April 8, 2019, Defendants Robert Wilkie, Michael J. Murphy, David A. Wood, Andrew Wilpher, and Keri Barbero, [1] by and through Peter L. Wucetich, Assistant United States Attorney for the District of Idaho, filed the pending motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

         STANDARD OF REVIEW

         1. FRCP 12(b)(1)

         Under Rule 12(b)(1), a party may move to dismiss based on a court's lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). “It is a fundamental precept that federal courts are courts of limited jurisdiction . . . [and] limits upon federal jurisdiction . . . must be neither disregarded nor evaded.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). “When considering a motion to dismiss for lack of subject matter jurisdiction, the court presumes the factual allegations of the complaint are true and draws reasonable inferences in favor of the non-moving party.” Whisnaut v. U.S., 400 F.3d 1177, 1179 (9th Cir. 2005). This tenet that allegations must be taken as true, however, does not extend to legal conclusions contained in the complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). The plaintiff has the burden of establishing that subject matter jurisdiction is proper. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994).

         2. FRCP 12(b)(6)

         Under Rule 12(b)(6), a party may move to dismiss based on the failure to state a claim upon which relief may be granted. See Fed.R.Civ.P. 12(b)(6). Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly,550 U.S. 544, 554 (2007) (internal citations omitted). In considering a Rule 12(b)(6) motion to dismiss, a court must take all allegations of material fact as true and construe them in the light most favorable to the nonmoving party, although “conclusory allegations of law and unwarranted inferences are insufficient to avoid a Rule 12(b)(6) dismissal.” Cousins v. Lockyer, 568 F.3d ...


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